On Maher Arar:

Arar's story raises a multitude of questions about how far our government will go in its "war on terrorism." The first concerns the use of secret evidence. George W. Bush went out of his way in the presidential campaign to condemn its use in immigration proceedings, and his Administration has maintained that even after 9/11 it has not relied on secret evidence. Yet in Arar's case, it did just that: He was expelled on evidence he never saw.

Second, what right did the United States have to take a Canadian citizen and put him on a government jet to Syria? The technical justification is that Arar had dual citizenship, and the government had the option to send him to either place because he was denied entry to the United States. But Arar was seeking entry in only the most technical and transitory sense, in order to catch a connecting flight out of the country. He had no desire to stay or even to visit. Yet as it has done so often since 9/11, the government exploited immigration law for purposes it was never designed to serve.

Finally, and most troubling, why did the United States care whether Arar was deported to Syria rather than Canada? We surely have better relations with Canada than Syria. The only possible reason is that federal authorities felt that the Syrians, who have a record of torture, might be able to extract information from Arar that US and Canadian authorities might not get. There is simply no other reason the US government would insist on redirecting Arar--it wanted him tortured but was unwilling to do the dirty work itself and knew Canada wouldn't do it either.

On the Guantanamo cases:

the Guantánamo cases are significant for three reasons. First, they will mark the Court's first confrontation with the question of whether and to what extent wartime authority extends to the "war on terror."

...Second, the cases test the boundaries of fundamental rights. Under constitutional and international law, the right not to be locked up arbitrarily is not restricted to those holding a US passport. ....The right of a human being not to be put behind bars without a hearing should not turn on the vagaries of whether he is held at Guantánamo Bay, Cuba, or Fort Myers, Florida. While battlefield realities may radically restrict the process that is due, it cannot be the rule that due process goes out the window whenever the government calls its initiative a "war."

....Third, the Guantánamo cases involve much more than the rights of foreign nationals.....the government has invoked the same "enemy combatant" authority to arrest two US citizens, Yasser Hamdi and José Padilla. Given its decision to hear the Guantánamo cases, it seems likely that the Court will also address the detention of US citizens. Its decision in the Guantánamo cases may set the ground rules for all.

No judicial function is more essential to the rule of law than the obligation to decide whether a person thrown behind bars is legally detained. The danger posed by the Guantánamo cases is that the Court will shirk this most critical responsibility and relegate the detainees to a permanent lawless state. If it does so, the Guantánamo cases may go down in history as Korematsu II.